Berkeley council approves short-term rental proposal

The owners of this rent-controlled apartment complex at 3100 College Ave., as of May, are renting out three of its apartments on Airbnb. Berkeley law does not allow rentals shorter than 14 days. Photo: Melati Citrawireja

The proposal, which now will be vetted and shaped by the Planning and Housing Advisory commissions before it returns to council, would legalize short-term rentals in Berkeley for up to 14 days, impose a tax on them and include regulations to minimize their impact on neighbors.

The new measure, which was put together by Mayor Tom Bates, Councilwoman Lori Droste and Councilman Jesse Arreguín, includes new clarifying language and host accountability provisions. The word “property” would be changed to “unit,” for example, to describe a hosting space, and hosting platforms could be required to list the business license of the host in online listings.

The measure also includes a provision for a one-time notification from the host to neighbors who live near the unit to be rented, which could include “primary-contact information, secondary-contact information, and links to the Berkeley Community Noise and Smoke-Free Multi-unit Housing ordinances.”

“This is not something that’s perfect, but it’s our first effort,” Bates told the small crowd that held out until after 10 p.m. at the June 23 council meeting to discuss the issue. “This is the beginning of the process — it’s not the end.”

Council voted unanimously to approve the measure, except for Councilman Kriss Worthington, who was absent at the time of the vote.

The new measure will also include a schedule of fines for people who violate the provisions of the short-term rental ordinance. The city will enforce the new codes with an additional, as yet undetermined, tax on top of the transient occupancy tax that will be assessed.

During the conversation on the proposed regulations, council members made clear that the emphasis on legislation was to preserve long-term housing and rectify the reality that all hosting units are currently operating illegally in Berkeley.

“You probably think that all we care about is the money,” Councilman Laurie Capitelli said as public comments on the issue drew to a close around 10:45 p.m. “But we’re not getting into regulating short term rentals to generate revenue for the city. For me, what’s most important is to preserve long-term rental housing, and we need to tread very cautiously.”

Capitelli, as well as public commenters, also noted that short-term rentals are and will continue to be illegal in the city until the legislation is finalized, and said council is trying “to be as fair to everyone as possible.”

Councilman Darryl Moore commended the work of Arreguín and Droste on the compromise proposal, a sentiment echoed by several audience members.

“It seemed like the amendments were all really good,” Kathy Harr, commissioner and vice-chair of the Berkeley Rent Board, told Berkeleyside by phone Wednesday. Harr was present at Tuesday’s meeting and emphasized in her public testimony that “no one is losing their livelihood here, because anyone who is counting on short-term rentals is breaking the law.”

She said she hoped the council meeting and increased conversation surrounding the new amendments would help to clear up several misconceptions home-sharers continued to have about the future legality of short-term rentals.

In general, Harr remained very optimistic about the steady progress of the short-term housing legislation. “It was nice to hear everybody putting the preservation of [long-term] housing first, and realizing the nuances of adapting to the time and doing it carefully.”

Lines of public speakers formed at various times during the night at the Berkeley City Council meeting on June 23, 2015 to discuss contentious items. Photo: Emily Dugdale

Public comments, however, revealed a few key concerns about the proposal from Berkeley rental hosts, sparking a divided discussion among council members that delayed the actual vote until after 11 p.m.

Many people reacted negatively to the line in the amendment that states that the rental unit must be the owner’s primary dwelling. Some worried that their detached units, “in-law” units, or backyard cottages would not count as rentable units.

According to Gregory Magofña, a legislative aide at the mayor’s office, “not all in-law units are created equal.” While renting out completely detached units that are not the primary residence of the host will be prohibited, it’s “not easy” to say definitely if in-law units will be allowed.

“If the unit is connected to the house, then [short-term] renting will be allowed,” he said. In-law units or other units, such as a backyard cottage, completely detached from the house that are not the primary residence of the host will not be allowed for short-term rentals under the current proposal.

A number of people said they would also prefer not to post their business license numbers online. Anne Marks, a Berkeley resident who rents out space on both Craigslist and Airbnb, said that the idea that someone could go to the city and request the address associated with a business license was “concerning.” She and others are worried that people with nefarious intentions could use that information to burglarize a home.

City Manager Christine Daniel did confirm when asked by Councilman Capitelli and Mayor Bates that, if someone did show up and ask for the address of a registered rental host with a business license, “we can’t say no to disclosing that.”

Councilwoman Linda Maio suggested that the Planning and Housing Advisory commissions take a closer look at this portion of the measure.

Bates commented that, if the city could not find a way to protect personal information, then the license ultimately shouldn’t be included. He also remarked that Airbnb already said it would not post business licenses. “It’s a request, not a mandate,” he said.

Another hot-button topic was the requirement to notify neighbors that a unit would be used as a short-term rental, as well as the issue of the severe third-violation punishment, which would require a one-year moratorium on any rentals after the third violation.

Several public commenters said they were concerned that requiring notification of neighbors would pit neighbor against neighbor.

“Having such snitch laws and witch hunt-type turn-ins is not the way to address problems,” said one speaker.

Council members said the hope is that notification would serve an important purpose in terms of neighborhood relations.

“The notification is important — things need to be mediated effectively,” Arreguín replied. “It is in the best interest of the host that there be information provided to neighbors to effectively mediate issues.”

As for the third-violation hooplah, “forcing businesses to stop hosting for one year is harmful,” said one public commentator. “Any neighbor with a personal vendetta against another could shut down a hoster by making noise complaints.”

“Every one of us is subject to the second-response ordinance,” Maio said in response. “[Three violations] just doesn’t happen — the police would have to come and conduct an investigation.”

Despite the disagreements, the motion passed with the clear priority by all council members about the dire importance of long-term housing preservation in Berkeley.